Citation Nr: 0327675
Decision Date: 10/16/03 Archive Date: 10/28/03
DOCKET NO. 00-05 543 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Theodore C. Jarvi, Attorney
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
REMAND
On September 13, 2002, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case. Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.
Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision. See 38
C.F.R. § 19.9(a)(2) (2002).
However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. § 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV"). The Federal Circuit held that 38
C.F.R. § 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. § 20.1304, was inconsistent with 38
U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.
Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA). VAOPGCPREC 1-03. Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.
Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions. In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.
In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.
Accordingly, this matter is REMANDED to the RO for the
following:
1. The RO should prepare a letter asking
the U.S. Armed Services Center for
Research of Unit Records (USASCRUR) to
provide any available information, which
might corroborate the veteran's alleged
in-service stressors. Provide USASCRUR
with a description of these alleged
stressors identified by the veteran.
They are marked in the claims file by
white tabs labeled "stressors". Also
provide USASCRUR with copies of any
personnel records obtained showing
service dates, duties, and units of
assignment.
One of the unverified stressors labeled
by a white tab involves a "race riot"
in October 1972 at 37th HEM Company or
Heavy Company, described as a small Army
vehicle repair facility in Inchon, Korea.
Please request morning reports for
September, October, and November 1972.
Associate USASCRUR's response(s) to the
claims file, including any negative
response(s).
2. The veteran's reported stressors
include an unverified personal trauma,
specifically a robbery in 1972 during
which he was cut with a razor. Please do
the following:
Write to the veteran and request he
identify and, if possible, provide
evidence from alternative sources for
verification of the alleged 1972 robbery.
This type of evidence may include, for
example, medical records from private
physicians or caregivers who may have
treated him either immediately following
the incident or sometime later; reports
from crisis intervention centers; lay
statements from family members,
roommates, comrades or clergy; or copies
of personal diaries or journals.
The veteran was apparently granted Social
Security Administration (SSA) disability
benefits in 1989 or 1990. Specifically
ask him if these records contain
evidence, such as the types listed above,
related to the 1972 robbery. If they do,
please obtain these SSA records.
(If necessary, consult M21-1, Part III,
Change 49 (February 1996) par. 5.14c,
"PTSD Claims Based on Personal Assault",
and M21-1, Part VI, Change 65 (October
1998) par. 11.38(b)(2) "Evidence of
Personal Assault" regarding the need for
additional development to corroborate the
veteran's claim.)
3. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
R. GARVIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).